KIM (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), brought before the Tribunal by the applicant, KIM. The central dispute revolved around whether the applicant met the English language proficiency requirements stipulated by clause 457.223(4)(eb) of the Migration Regulations.

The Tribunal was required to determine if the applicant satisfied the conditions under clause 457.223(4)(eb), which mandates that an applicant, if not exempt and if subclause (6) does not apply, must have undertaken a specified language test and achieved the required score within a specified period and in a single attempt. The Tribunal also considered the definitions of an "exempt applicant" under clause 457.223(11) and the conditions under which subclause 457.223(6) would apply, relating to salary thresholds and the interests of Australia.

The Tribunal reasoned that the applicant was not an exempt applicant as they did not meet the criteria outlined in the relevant legislative instrument, IMMI 14/009. Furthermore, the applicant's nominated annual base salary of $57,200 was below the $96,400 threshold required for subclause 457.223(6) to apply. As the applicant's nominated occupation, Wall and Floor Tiler, did not require mandatory licensing or registration, clauses 457.223(4)(ea)(i) and (ii) were not applicable. Consequently, the Tribunal concluded that the applicant was required to satisfy the English language testing requirements under clause 457.223(4)(eb)(iv) and (v).

The Tribunal remitted the applications for reconsideration, directing that the first named applicant meets the criteria specified in clauses 457.223(4)(eb)(iv) and (v) of Schedule 2 to the Regulations.